LGBT Elders in a Post-Windsor World: The Promise and Limits of Marriage Equality

By Knauer, Nancy J. | Texas Journal of Women, Gender, and the Law, Fall 2014 | Go to article overview

LGBT Elders in a Post-Windsor World: The Promise and Limits of Marriage Equality


Knauer, Nancy J., Texas Journal of Women, Gender, and the Law


Introduction..........3

I. LGBT Issues and Aging..........8

II. Living on the Edge of (Marriage) Equality..........16

A. The Present State of Marriage Equality..........17

1. Marriage and Marriage Equivalent..........18

2. Marriage Prohibitions..........20

3. Marriage Litigation..........23

B. Post-Windsor Federal Marriage Recognition..........26

1. State-of-Celebration or State-of-Domicile?..........28

2. Federal Tax Laws-State-of-Celebration..........30

3. Social Security-Domicile..........32

4. Medicare and Medicaid-Domicile and Celebration..........34

5. ERISA, Pensions, and Retirement Funds-Celebration..........38

6. Veterans' and Other Federal Benefits-Celebration..........40

III. The Importance of Advance Planning..........40

A. Income Security-Whether to Wed and Where to Retire..........41

B. Traditional Estate Planning: The Basics..........46

C. Developing an Integrated Elder Care Plan..........48

1. Gender Identity..........50

2. Housing and "Aging in Place"..........50

3. Caregiving and Capacity Questions..........52

4. Visitation Issues..........54

5. Burial and Funeral Instructions..........55

IV. Remaining Areas for Reform..........57

A. Marriage Equality..........57

B. Greater Legal Recognition of Chosen Family..........59

C. Guardianship Reform..........61

D. Broad Antidiscrimination Protections in Senior-Specific Venues..........62

E. Cultural Competency and Market-Based Solutions..........63

Conclusion..........64

INTRODUCTION

At the age of 84, Edie Windsor, a petite, well-coifed widow, became the unlikely face of the marriage equality movement.1 Edie had married her long-time partner Thea Spryer in Canada in 2007 after Thea was diagnosed with a life-threatening illness.2 The couple first met in 1963 and, by the time they married, they had been engaged for over 40 years.3 When Thea died in 2009, Edie was presented with a federal estate tax bill for $363,053 because she did not qualify for the unlimited marital deduction that is designed to provide tax relief for surviving spouses.* * * 4 Section 3 of the Defense of Marriage Act (DOMA) mandated that for all federal purposes marriage was only between a man and a woman, and the Internal Revenue Service (1RS) had no choice but to disallow Edie's claim for the marital deduction.5 Edie challenged Section 3 of DOMA on the grounds that it violated the Due Process Clause and Equal Protection guarantees of the Fifth Amendment, and a majority of the U.S. Supreme Court agreed.6 In United States v. Windsor, the Court ruled that Section 3 "is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."7

On the day the case was argued, Edie appeared triumphant on the steps of the U.S. Supreme Court, flanked by her lawyers.8 The picture of Edie with her arms outstretched in victory, dressed in her stylish pantsuit and bright pink scarf, has become an iconic and galvanizing image of the lesbian, gay, bisexual, and transgender (LGBT) rights movement.9 Heralded as a landmark opinion, the change brought about by Windsor was immediate and swift, affecting every married same-sex couple in the United States who pays taxes or receives federal benefits.10 The potential scope of the ruling extends beyond the issue of federal recognition and has overshadowed the higher profile companion case of Hollingsworth v. Perry that was argued by the legal dream team of Ted Olson and David Boies." When Edie filed her lawsuit in 2010, only five states recognized same-sex marriage.12 The number now stands at thirty-six states with full marriage equality,13 and decisions from U.S. Circuit Courts and numerous federal district courts have invalidated state prohibitions on same-sex marriage, citing Windsor as precedent. …

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